GENERAL SERVICES AGREEMENT
This Agreement dated as of July 17, 1997 (the "Agreement") by and between
Marcam Corporation, a Massachusetts corporation (the "Company"), and Marcam
Solutions, Inc., a Delaware corporation ("Marcam Solutions"):
WITNESSETH:
WHEREAS, the Company and Marcam Solutions have entered into the
Distribution Agreement dated as of July 17, 1997 (the "Distribution Agreement"),
pursuant to which the Company will transfer to Marcam Solutions certain assets
relating to the Marcam Solutions Business (as defined in the Distribution
Agreement);
WHEREAS, the Company intends to distribute all of the outstanding shares of
Marcam Solutions Common Stock (as defined in the Distribution Agreement) to its
stockholders in the manner specified in the Distribution Agreement;
WHEREAS, in connection with the transactions contemplated by the
Distribution Agreement, each party hereto has requested that the other party
provide it with certain consulting, management, administrative and legal
services as contemplated by this Agreement;
NOW, THEREFORE, in consideration of these premises and the mutual promises
and covenants contained in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and Marcam Solutions (collectively, the "Parties" and each a "Party")
hereby agree as follows:
1. Services to be Rendered. Each Party shall render to the other from time
to time, upon request and subject to the availability of necessary resources,
those routine and ordinary tax, accounting, legal, administrative and securities
laws reporting-related services consistent with past practice and which such
other Party can provide with its existing staff and facilities (the "Services").
By agreeing to provide the Services as an accommodation to each other, neither
Party is making any representations or warranties as to the quality, suitability
or adequacy of the Services for any purpose or use. In providing the Services,
neither Party shall be obligated to (i) hire any additional employees; (ii)
maintain the employment of any specific current employees; (iii) maintain any
specific level of staffing; or (iv) purchase, lease, or license any additional
equipment, software or facility. Each Party shall be responsible for scheduling
times for the performance of all Services and shall use its reasonable efforts
to provide the other Party with advance notice of its requirements for Services
to facilitate its employee scheduling and preparation for such Services in a
manner that does not conflict with such Party's employees' other
responsibilities. This Agreement shall not apply to Services provided pursuant
to the Tax Sharing Agreement (as defined in the Distribution Agreement).
2. Compensation. For the Services rendered by one Party to the other Party
pursuant to this Agreement, the Party requesting Services shall pay to the Party
providing Services the sum of (i) an amount equal to 135% of the pro rated
salary of the person or persons providing the
requested Services, (ii) an amount equal to three percent (3%) of the amount
specified in clause (i) above, and (iii) directly related out-of-pocket
expenses, including, without limitation, travel, meals, couriers and third-party
consultants and experts associated with providing such Services (the "Allocated
Amounts"). The Allocated Amounts will be invoiced at the end of each month
during the term of this Agreement and the Party requesting Services shall pay to
the Party providing Services such invoiced amounts within thirty days of receipt
of the invoice.
3. Term; Termination.
(a) This Agreement shall be effective as of the date hereof and shall
continue in full force and effect until September 30, 1998 (the "Term"), unless
sooner terminated as provided herein. Notwithstanding the foregoing, the Parties
hereto may agree from time to time to discontinue providing or receiving
particular Services as provided hereunder.
(b) Either Party may terminate this Agreement by written notice to the
other Party, effective immediately upon its sending, if the other Party shall
file a petition in bankruptcy, shall be adjudicated as bankrupt, shall take
advantage of the insolvency laws of any jurisdiction to which it is subject,
shall make an assignment for the benefit or creditors, shall be voluntarily or
involuntarily dissolved, shall admit in writing its inability to pay debts as
they come due, or shall have a receiver, trustee or other court officer
appointed for its property.
(c) Either Party may terminate this Agreement if the other Party shall
fail to perform or shall be in breach of any of its material obligations
hereunder, and shall have failed or been unable to remedy said failure or breach
within thirty (30) days after receipt of written notice from the nonbreaching
Party with respect thereto. In addition to the foregoing, the nonbreaching Party
shall be entitled all remedies available under law or equity, subject to the
limitations on liability expressed herein.
(d) The Parties' rights and obligations under Sections 2 and 4 though
9 shall survive any expiration or termination of this Agreement.
4. Confidentiality; Records.
(a) For purposes of this Agreement, "Confidential Information" shall
mean (i) all technical and business information disclosed in any manner or form,
including financial plans and records, marketing plans, business strategies,
trade secrets, present and proposed products, computer software programs, source
code, object code, technical documentation relating to any computer software
programs, source code, object code, or any enhancements or modifications
thereto, information regarding or embodied in the Licensed Software (as defined
in the Back-Up License Agreement) or any Proprietary Rights, relationships with
third parties, customer lists, information regarding customers, suppliers,
founders, employees and affiliates shall be deemed to be Confidential
Information, regardless of whether it is disclosed in writing or orally or
marked or otherwise identified as proprietary or confidential, and (ii) all
other information disclosed by one party to the other party pursuant to this
Agreement and identified by the
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disclosing party as proprietary or confidential, or if disclosed orally,
summarized in written format within thirty (30) days of disclosure.
(b) All information provided in connection with this Agreement will be
provided subject to the following terms and conditions: (i) the receiving party
shall not disclose Confidential Information of the disclosing party to any
Person other than the directors, officers and employees of the receiving party
who have a need to have access to such Confidential Information to perform the
receiving party's obligations under this Agreement; (ii) the disclosing party's
Confidential Information shall be used only as necessary for performance of the
receiving party's obligations under this Agreement and the receiving party shall
not make more copies of the Confidential Information than is necessary for such
use; (iii) the receiving party shall not have any obligation with respect to any
Confidential Information of the disclosing party which the receiving party can
establish is or becomes publicly available through no fault of the receiving
party, was lawfully obtained by the receiving party without any obligation to
maintain the Confidential Information as proprietary or confidential from a
third party who was also not subject to any obligation to maintain the
Confidential Information as proprietary or confidential, was previously known to
the receiving party without any obligation to keep it confidential or was
independently developed by the receiving party; (iv) no license to either
parties' Confidential Information is either granted or implied by the disclosure
of Confidential Information; (v) on the earlier of fourteen (14) days of a
request by the disclosing party or termination or expiration of this Agreement,
the receiving party shall return or destroy all property, including documents,
records, tapes, and any other media as well as all copies thereof, in its
possession or under its control that contains Confidential Information of the
disclosing party and shall certify in writing to the disclosing party that this
provision has been complied with; (vi) the duties and obligations to protect
Confidential Information shall survive termination of this Agreement; and (vii)
the parties recognize and acknowledge that the Confidential Information may have
competitive value and that irreparable damage might result to the disclosing
party if Confidential Information is improperly disclosed by the receiving party
to any unauthorized Person. The parties agree that legal proceedings at law or
in equity, including injunctive relief, may be appropriate in the event of a
breach hereof. Notwithstanding anything to the contrary set forth in the
Distribution Agreement, this Section 4 shall govern all matters relating to
information disclosed pursuant to this Agreement.
(c) Each Party shall maintain for a reasonable period of time accurate
records of all matters which relate to its obligations hereunder. To the extent
that such records may be relevant in determining if a Party is complying with
its obligations hereunder, the other Party and its authorized representatives
shall, on reasonable prior notice, have access to such records for inspection,
copying and audit during normal business hours.
5. Prevention of Performance. No Party shall be determined to be in
violation of this Agreement if it is prevented or delayed from performing any of
its obligations hereunder for any reason beyond its reasonable control,
including, without limitation, acts of God, nature or of public enemy, strikes
or limitations of law, regulations or rules of the Federal or of any state or
local government or of any agency thereof.
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6. Independent Contractor; Indemnification.
(a) It is expressly agreed by the Parties hereto that each is at all
times acting and performing hereunder as an independent contractor and not as
agent for the other, and that no act of commission or omission of either Party
hereto shall be construed to make or render the other Party its principal,
agent, joint venturer or associate, except to the extent specified herein.
(b) Subject to Section 6(c), each Party shall indemnify, defend and
hold the other Party and its directors, officers, employees and agents harmless
from and against all damages, losses and reasonable out-of-pocket expenses
(including reasonable attorneys' fees) incurred by such Party in the course of
performing the duties prescribed hereby, except for damages, losses and
out-of-pocket expenses incurred as a result of any willful misconduct or
negligence of any director, officer, employee or agent of the other Party.
(c) Neither Party assumes any responsibility to the other Party under
this Agreement other than to render the Services called for under this Agreement
in good faith and shall have no liability to the other Party, except for gross
negligence or willful misconduct. Each Party's sole remedy on account of the
failure of the other Party to render the Services as and when required hereunder
shall be to procure services elsewhere.
7. Distribution Agreement. Unless otherwise defined in this Agreement,
capitalized terms used in this Agreement that are defined in the Distribution
Agreement shall have the meanings assigned to them in the Distribution
Agreement. Notwithstanding any other provisions in this Agreement to the
contrary, in the event and to the extent that there shall be a conflict between
the provisions of this Agreement and the provisions of the Distribution
Agreement, the provisions of the Distribution Agreement shall control. Unless
otherwise set forth in this Agreement, the rules of construction, documentary
conventions and dispute resolution procedures set forth in the Distribution
Agreement (including the provisions of Article VII thereof) shall apply to this
Agreement.
8. Governing Law. This Agreement shall be governed by, and construed
and enforced with, the substantive law of the Commonwealth of Massachusetts,
without regard to the principles of conflicts of laws thereof.
9. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
MARCAM CORPORATION
By: ______________________________
Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
MARCAM SOLUTIONS, INC.
By: ______________________________
Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
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